The National Marine Fisheries Service (“NMFS”) Should Defer Final Take Rules for Oil and Gas Marine Mammal Take Authorizations in the Gulf of Mexico Until After Courts Decide Related Issues in Pending Litigation over NMFS’ Take Authorizations for Oil and Gas Exploration off the Atlantic Coast and Alaska
NMFS currently intends to publish final Marine Mammal Protection Act (“MMPA”) Rules for oil and gas geophysical surveys in the Gulf of Mexico by November 5, 2019 (“GOM Take Rules”). These GOM Take Rules were originally requested by the Department of Interior’s Bureau of Ocean Energy management (“BOEM”). There is no legal deadline requiring this or any other publication date. No statute or settlement agreement requires NMFS to promulgate final GOM Take rules by this date. Oil and gas operations have been and will continue to be heavily regulated under OCSLA, NEPA and the ESA, which also protect marine mammals.
A November 5, 2019 publication date for final Rules would be ill advised and premature given current litigation over NMFS’ Incidental Harassment Take Authorizations (“IHAs”) for oil and gas geophysical surveys in the Atlantic Ocean. This litigation is ongoing in the United States District Court for the Southern District of South Carolina. Based on current scheduling, the South Carolina court can decide summary judgment motions in early 2020, only a few months after NMFS’ current November 5, 2019 schedule for publishing final GOM Take rules.
The Atlantic IHAs and GOM Take Rules cover essentially the same oil and gas exploratory operations, just in different water bodies. They both authorize a specified number of “incidental take” of marine mammals during offshore exploratory operations. They both require essentially the same “mitigation” measures during these operations. They are both subject to essentially the same legal and evidentiary requirements. They both emphasize that there is no evidence showing any marine mammal population harm during these offshore oil and gas operations. The primary difference between the generic GOM Take Rules and the company-specific Atlantic IHAs is that the proposed GOM Rules cover a longer period of time than the IHAs, which are only good for one year of operations.
The court’s decision in the Atlantic IHA litigation will affect several major and controversial issues in the proposed GOM Take Rules. Many of the issues raised by plaintiffs in the Atlantic IHA litigation are also prominent in comments filed on the proposed GOM Take Rules. Perhaps the most prominent of these common issues is NMFS’ determination that only “small numbers” of marine mammals will be taken under the Atlantic IHA authorization and under the proposed GOM Take Rules. “Small numbers” is a MMPA statutory limitation on Take authorizations. For both the proposed GOM Take Rules and the Atlantic IHAs, NMFS decided that “small numbers” is determined by reference to a percentage of the most appropriate population abundance number, and that one-third is the most appropriate percentage to use for Take authorizations. In other words, the limit for Take authorizations in both the GOM rules and the Atlantic IHAs is one-third of the population of each specific marine mammal species in the affected offshore areas.
In the Atlantic IHA litigation, the plaintiffs (e.g., environmental groups) have vigorously challenged NMFS’ approach to the “small numbers” requirement. Many of the same parties have also vigorously challenged NMFS’ identical approach in comments they filed on the proposed GOM Take Rules. There are several other issues being challenged in the Atlantic IHA litigation that have also been challenged in comments filed on the proposed GOM Take Rules, often by the same parties. One should expect litigation over the GOM Take Rules once NMFS promulgates them as final. Many of the GOM litigation issues will be the same as issues in the Atlantic IHA litigation.
In addition to the Atlantic IHA litigation, enviros have also sued NMFS over the Service’s MMPA rules authorizing an oil and gas company to take marine mammals incidental to oil and gas exploration and development activities in Cook Inlet, Alaska. This Alaska case also raises the “small numbers” and other issues relevant to the final Atlantic IHAs and to the proposed GOM Take Rules. Its decision will also affect the GOM Take Rules.
OMB/OIRA will have to review NMFS’ draft final GOM Take Rules under Executive Order 12866 before NMFS publishes them. As of August 28, 2019, NMFS has not sent draft final rules to OMB/OIRA for review.
It would be ill advised, premature and unnecessary for OMB/OIRA to approve, and for NMFS to publish, final GOM Take Rules before decisions in the Atlantic and Alaska litigation. The court’s decisions in these cases will unquestionably affect the probable litigation over final GOM Take rules because they will involve similar claims and issues, and because the Atlantic and Alaska cases will be decided before a decision in any GOM Take Rule litigation.
NMFS staff say that they want to meet a November 5, 2019 publication date because of a settlement agreement between enviros in an old NEPA case in New Orleans federal district court. This settlement does not create any legally enforceable right to require NMFS to meet any deadline or promulgate any GOM Take Rules. Under the settlement, the enviro plaintiffs agree not to sue NMFS until NMFS takes final action on Interior/BOEM’s petition for MMPA GOM Take rules (although unlikely, that final action could be denying the petition), or until a date specified in the settlement agreement, whichever comes first. The settlement’s specified date was originally December 25, 2015. NMFS kept asking for and getting extensions. The specified date is now November 5, 2019. It will probably have to be extended again because NMFS did not send final GOM Take Rules to OMB/OIRA for completion of Executive Order 12866 review in time to meet a November 5, 2019 deadline.
Any attempts to avoid litigation over the GOM Take Rules through settlement or otherwise are futile because there will be litigation over the GOM Take Rules, just as there is litigation over the similar Atlantic IHAs and Alaskan Take rules. NMFS is going to be sued no matter what.
In sum, NMFS has no legal requirement to publish final GOM Take Rules by November 5, 2019, or by any other date. Deferring approval and publication off final GOM Take Rules until after the Atlantic and Alaska courts decide similar issues will provide OMB/OIRA and NMFS with crucial information about how to promulgate defensible GOM Take Rules. There are good reasons to defer approval and publication. At this point in time, there are no good reasons not to.
See, e.g., OIRA Conclusion of Executive Order 12866 Regulatory Review of NOAA/NMFS’ Proposed GOM Take Rules (“Legal deadline: none”), which is available at https://www.reginfo.gov/public/do/eoDetails?rrid=127604 .
 This case is South Carolina Coastal Conservation League v. Ross, No. 2:18-cv-03326-RMG (consolidated with 2:18-cv-3327-RMG) (D. S.C., filed 2/21/19).
 Compare Proposed GOM Take Rules at https://www.regulations.gov/document?D=NOAA-NMFS-2018-0043-0011 with Final Atlantic IHAs at https://www.federalregister.gov/documents/2018/12/07/2018-26460/takes-of-marine-mammals-incidental-to-specified-activities-taking-marine-mammals-incidental-to .
 This case is NRDC vs. Dept. of Interior, No. 2:10-cv-01882 (D. La., filed 6/30/10).